The Gazette 1977

DECEMBER 1977

GAZE1TE

to direct the insertion of a Rent Review Clause in the Lease that he can now legally fix a rent in this case; (2) If he can, when fixing the rent to be reserved by the new Lease, is he legally entitled by increasing the rent which he would consider to be appropriate to present conditions, to endeavour, in so far as is possible, to provide an aggregate amount of rent over the term of 21 years equal to the total of the rents a willing Landlord would obtain by granting a Lease for 21 years with a Clause providing for periodic rent reviews. The facts were that the Tenant had been held to be entitled to a new Lease under Part III of the Landlord & Tenant Act, 1931, the parties had not been able to agree upon a rent, the Circuit Court had fixed a rent of £ 10 per week for the entire of the 21 year term of the new Lease and the Landlord had appealed to the High Court. The Supreme Court held (Kenny and Parke JJ.) that the Circuit Court had no power under the Act of 1931 to insert a Rent Review Clause in any Lease which it orders to be given. The answer to the first question asked was "yes" and the answer to the second question was "that the Judge was legally entitled to increase the rent to the amount which he considers appropriate in certain conditions to endeavour, in so far as is possible, to provide an aggregate amount of rent over the term of 21 years, equal to the total of rents which a willing Landlord would obtain by granting a Lease for that period with a Clause providing for periodic rent reviews, provided that there is evidence to support his finding". In a dissenting judgment Griffin J. agreed that the Courts could not insert a Rent Review Clause in a new Lease granted under the Act, but doubted whether in fact it was possible to endeavour to estimate what rent a willing Landlord would be likely to obtain over the next 21 years under a Lease which contained a Clause providing for periodic rent reviews. Joan Byrne v John Loftus — Supreme Court (Griffith, Kenny and Park JJ.) — unreported — 28 July, 1977.

Landlord and Tenant — Right of Unincorporated Club to New Lease, Compliance with Terms of Act. Applicants were tenants from year to year of a field with a Sports Pavilion (erected by the Applicants or their predecessors in title) as Trustees for Belgrove Football Club following on the expiry of a Lease for a term of 10 years from 1953 granted by a Lease of 1951. The Lease had originally been granted to a Company which had assigned its interest in the Lease to the then Trustees of the Club in 1957. The Trustees had been specifically elected by the members of the Club to take the Assignment. One of them had retired and been replaced by a new Trustee, but no Assignment of the interest to the new Trustee had ever taken place. The Applicants applied to the Landlord for a Sporting Lease under Section 3 of the Landlord & Tenant (Amendment) Act, 1971. In response the Landlord served a Notice to Quit on 5 July, 1973, expressed to expire on 9 September, 1974. The Club had expended more than £1,200.00 on the buildings now on the field. The Club's Application was dismissed in the Circuit Court and on Appeal to the High Court the Judge stated two questions for the Supreme Court to answer. (1) Where the Sports Club or Organisation within die meaning of Section 2 (1) of the Landlord 8c Tenant (Amendment) Act, 1971, is unincorporated can such a Club or Organisation avail of the provisions of the said Section? (2) Is it a condition of entitlement to a sporting Lease under Section 2 (2) (i) (sic) of the Landlord & Tenant (Amendment) Act, 1971, that the lands must have been held for the purpose of carrying on a sport under the Lease for a term of not less than 21 years"? The Supreme Court held that the answer to the first question was "yes". Few Clubs are incorporated and the effect of the contention that a Club with its fluctuating membership not being a legal person was not capable of requiring or holding an estate in land would be to exclude about 98% of the Clubs in the Republic of Ireland from the benefits of the Act of 1971. The property of the Club is invariably held by Trustees to hold in Trust for the members for the time being of the Club. Statute Law has already allowed the Club despite its fluctuating membership to be

registered under the Registration of Clubs (Ireland) Act of 1904. The meaning of Section 2 of the Act of 1971 is that a Club has become entitled to the beneficial interest in the term of years created by the Lease to be granted even when the legal estate is vested in trustees. This concept already known to our law gives effect to the main purpose of the Act of 1971 and so should be adopted. The answer to the second question depends on the exact wording of Sub- Section (2) of Section 2 of the Act of 1971, which is: "2. (2) The following are the conditions to be complied with: (a) that— (i) the land is held for the purpose of carrying on the sport under a lease for a term of not less than twenty one years, (ii) the land has been continuously occupied by the sports club for that purpose for the period of not less than twenty one years immediately preceding the date of the application for a sporting lease, or (iii) the land has been continuously in the possession of the sports club for that purpose for the period of not less that twenty one years immediately preceding the date of the application for a sporting lease". The omission of "or" at the end of Sub-Clause (i) is a matter of style. The meaning of the whole sub-section is that compliance with any one of the three sub-clauses is sufficient to entitle the applicant to a Sporting Lease. The answer to the second question should be "not necessarily so". It is sufficient if the Applicant complies with any one of the three conditions set out in Section 2. (2) (a). Thomas P. Corley, Raymond McLonghlin and Albert D. Camranl v. John GDI — Supreme Court — Judgment of Kenny J. — unreported — 21 July, 1977.

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